PRESENT: Lemons, C.J., Mims, McClanahan, Powell, and Kelsey, JJ., and Russell and
Millette, S.JJ.
BRIAN D. PARRISH, ET AL.
OPINION BY
v. Record No. 150454 JUSTICE WILLIAM C. MIMS
June 16, 2016
FEDERAL NATIONAL MORTGAGE ASSOCIATION
FROM THE CIRCUIT COURT OF HANOVER COUNTY
J. Overton Harris, Judge
In this appeal, we consider whether a general district court has subject matter jurisdiction
under Code §§ 16.1-77(3) and 8.01-126 to adjudicate an action for unlawful detainer when a
homeowner challenges the validity of a trustee’s deed after foreclosure, and whether a circuit
court has such jurisdiction under Code §§ 16.1-106 and 17.1-513 in a de novo appeal from such
a proceeding. We also consider whether a circuit court may consider in a de novo appeal the
pleadings originally filed in the general district court proceeding.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Brian D. and Teresa D. Parrish owned a parcel of real property situated in Hanover
County, which they conveyed by deed of trust to Brian K. Stevens, trustee, to secure a note in the
principal amount of $206,100, plus interest. In May 2014, ALG Trustee, LLC, the substitute
trustee under the deed of trust, conveyed the parcel by trustee’s deed to Federal National
Mortgage Association (“Fannie Mae”). Fannie Mae thereafter sent the Parrishes a notice to
vacate. It later filed a summons for unlawful detainer in the general district court.
The Parrishes responded by alleging that the foreclosure was invalid because their deed
of trust incorporated 12 C.F.R. § 1024.41(g), which they asserted prohibits foreclosure if a
borrower submitted a completed loss mitigation application more than 37 days before the
foreclosure sale. They alleged that they had submitted such an application. They further alleged
that Fannie Mae (their lender as well as the foreclosure purchaser) and its agent had instigated
the foreclosure despite the pending application and in breach of the deed of trust. The court
awarded Fannie Mae possession and the Parrishes filed a de novo appeal in the circuit court.
In the circuit court, Fannie Mae filed a motion for summary judgment or motion in limine
in which it argued that its trustee’s deed was prima facie evidence of its right of possession. It
argued that the circuit court should exclude any defense contesting the validity of the foreclosure
from which the deed arose because the general district court lacked subject matter jurisdiction to
try title in a proceeding on unlawful detainer. Fannie Mae contended that because the circuit
court’s subject matter jurisdiction on appeal from the general district court was merely derivative
of the general district court’s subject matter jurisdiction, the circuit court also lacked such
jurisdiction. The Parrishes opposed Fannie Mae’s motion, arguing among other things that
because the appeal was de novo, the circuit court could not consider the pleadings filed originally
in the general district court, to which Fannie Mae referred in its motion. The court thereafter
granted Fannie Mae’s motion and awarded it possession of the parcel.
We awarded the Parrishes this appeal.
II. ANALYSIS
In one assignment of error, the Parrishes assert that the circuit court erred by granting
Fannie Mae’s motion for summary judgment and awarding it possession of the parcel. Fannie
Mae responds that the circuit court did not err because it lacked subject matter jurisdiction to
consider the validity of the foreclosure; the general district court had no subject matter
jurisdiction to try title, so the circuit court had none in the appeal.
Subject matter jurisdiction is a threshold question. Spencer v. City of Norfolk, 271 Va.
460, 462, 628 S.E.2d 356, 357 (2006). It is a question of law we review de novo. Glasser &
Glasser, PLC v. Jack Bays, Inc., 285 Va. 358, 369, 741 S.E.2d 599, 604 (2013). Subject matter
2
jurisdiction “is the authority granted through constitution or statute to adjudicate a class of cases
or controversies.” Morrison v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755 (1990). In
deciding questions of subject matter jurisdiction, we are not limited to the arguments raised by
the parties. See id. at 169-70, 387 S.E.2d at 755-56 (noting that courts may raise questions of
subject matter jurisdiction sua sponte and that parties can neither waive nor confer subject matter
jurisdiction).
As courts not of record, general district courts are creations of the General Assembly.
Va. Const. art. VI, § 8; Code § 16.1-69.7. They are courts of limited jurisdiction and may
exercise only such subject matter jurisdiction as has been expressly conferred by statute.
Addison v. Salyer, 185 Va. 644, 648, 40 S.E.2d 260, 262 (1946). It is well-settled that when
exercising its appellate jurisdiction in a de novo appeal, the circuit court’s subject matter
jurisdiction is derivative of the court not of record from which that appeal is taken. Id. at 651-52,
40 S.E.2d at 264. Therefore, when exercising its de novo appellate jurisdiction, the circuit court
has no more subject matter jurisdiction than the general district court had in that court’s original
proceeding. 1 Thus, the scope of the general district court’s subject matter jurisdiction is the
dispositive issue here.
Code §§ 16.1-77(3) and 8.01-126 confer upon general district courts subject matter
jurisdiction to try actions for unlawful detainer. However, we have expressly held that courts not
of record have no subject matter jurisdiction to try title to real property. Addison, 185 Va. at
648-49, 40 S.E.2d at 262; see also Warwick v. Mayo, 56 Va. (15 Gratt.) 528, 540-41 (1860) (“In
1
A court’s appellate jurisdiction is distinct from its original jurisdiction. For example,
circuit courts have original jurisdiction over unlawful detainer actions under Code § 8.01-124 in
addition to appellate jurisdiction over such actions filed originally in general district court, but
this grant of original subject matter jurisdiction is not invoked in an appeal from an unlawful
detainer proceeding originally filed in a general district court.
3
Virginia, it is not pretended that [courts not of record] have ever been empowered by any statute
to try, without writ, titles to land in civil causes.”). In the 156 years since Warwick and the 70
years since Addison, the General Assembly has amended the provision currently codified at
Code § 8.01-126 several times. See, e.g., 1870-71 Acts ch. 130; 1890 Acts ch. 213; 1904 Acts
ch. 211; 1940 Acts ch. 193. Nevertheless, it has not expressly conferred upon general district
courts subject matter jurisdiction to try title in an unlawful detainer action. We presume that the
legislature is aware of its own statutes conferring subject matter jurisdiction upon courts not of
record and our precedents interpreting them. Andrews v. Commonwealth, 280 Va. 231, 286, 699
S.E.2d 237, 269 (2010). Its silence therefore evidences approval. Manchester Oaks
Homeowners Ass'n v. Batt, 284 Va. 409, 428, 732 S.E.2d 690, 702 (2012).
However, this creates a conundrum because some actions for unlawful detainer
necessarily turn on the question of title. Unlawful detainer is an action against a defendant who
lawfully entered into possession of real property but whose right to lawful possession has since
expired. It is brought by a plaintiff lawfully entitled to possession at the time of suit, which the
defendant is then unlawfully withholding. Allen v. Gibson, 25 Va. (4 Rand.) 468, 473 (1826).
The validity of the plaintiff’s right of possession is an issue that, when disputed, must be
determined in the adjudication of the unlawful detainer action. Id. at 474. The plaintiff must
show either (1) prior actual possession, which was then yielded to the defendant under some
temporary or defeasible estate that has ended, or (2) a right of possession acquired after the
defendant’s entry. Id. at 474-76.
Whether the plaintiff has a right of possession will not always present a question of title.
Such a question will never arise in the first class of cases, where the plaintiff’s right is based on
prior actual possession. For example, a landlord may bring an action for unlawful detainer
against a tenant who holds possession of the leased premises in violation of the lease or after it
4
has expired. In such cases, the defendant’s possession is derivative of the plaintiff’s title, and the
defendant is not permitted to challenge it. Emerick v. Tavener, 50 Va. (9 Gratt.) 220, 223
(1852). However, a plaintiff in the second class of cases, who claims a right of possession
acquired after the defendant’s original, lawful entry, must show the validity of that right. When
the plaintiff’s after-acquired right of possession is based on a claim of title, the plaintiff may be
required to establish the validity of that title. Corbett v. Nutt, 59 Va. (18 Gratt.) 624, 648
(1868). 2 Actions for unlawful detainer in the foreclosure context generally fall into this
category. 3
2
Where the right of possession depends solely upon a claim of title, the question of
whether that title is valid is a threshold question in an unlawful detainer action. While a court’s
resolution of that question in an unlawful detainer action may not, by statute, be preclusive in
actions for ejectment or to quiet title, the court trying the unlawful detainer action nevertheless
must weigh the parties’ competing arguments about validity to determine whether a plaintiff’s
prima facie right of possession evidenced by a trustee’s deed has been rebutted by the defendant.
3
In her opinion concurring in part and dissenting in part, Justice McClanahan overlooks
this distinction between (1) the unlawful detainer plaintiff who once held both title and
possession and thereafter yielded possession temporarily, on terms, to the unlawful detainer
defendant who continues to hold possession in violation of those terms, and (2) the unlawful
detainer plaintiff who never held possession and claims a right of possession based solely upon a
claim that he acquired title after the defendant lawfully entered. While the first plaintiff may
bring an unlawful detainer action to “recover” possession, the second cannot--because he never
had it to begin with. The latter plaintiff can only bring such an action to “obtain” possession for
the first time. When he does so, the validity of his claimed right of possession cannot be severed
from the validity of his claimed title, because his title is the only thing from which any right of
possession appears. Thus, it is he, the unlawful detainer plaintiff, who by seeking to oust the
defendant of possession (based upon a claim of after-acquired title) seeks to establish complete
title (in the terms of Pannill v. Coles, 81 Va. (6 Hans.) 380, 384 (1886)), by “unit[ing] in himself
the possession, the right of possession, and also the right of property.” 2 William Blackstone,
Commentaries *198.
In the specific context of a foreclosure, the foreclosure purchaser plaintiff comes to court
claiming a right of possession based on a claim of legal title, itself based on the trustee’s deed by
which the trustee has ostensibly conveyed to the foreclosure purchaser the legal title conveyed in
the deed of trust to the trustee by the defending homeowner. Meanwhile, the defending
homeowner has possession, which the foreclosure purchaser plaintiff seeks to oust. The question
of which of the two parties is entitled to possession is inextricably intertwined with the validity
of the foreclosure purchaser’s title.
5
In most foreclosure cases, a trustee’s deed will satisfy the foreclosure purchaser’s burden
to establish that it acquired a right of possession after the homeowner’s original, lawful entry,
and the homeowner will have no good-faith basis to contest it. However, in limited
circumstances, the homeowner could allege facts sufficient to place the validity of the trustee’s
deed in doubt. In such cases, the general district court’s lack of subject matter jurisdiction to try
title supersedes its subject matter jurisdiction to try unlawful detainer and the court must dismiss
the case without prejudice. Warwick, 56 Va. (15 Gratt.) at 542 (“[O]n being convinced that the
case involves a bona fide claim of title to real estate,” a court not of record “is bound to dismiss
[the proceeding] immediately.”). 4
This holding does not mean that any naked allegation that the trustee’s deed is invalid
will put the deed in doubt, thereby divesting the general district court of jurisdiction. The
question of title raised by the homeowner’s allegations must be legitimate. Id. at 542 (requiring
dismissal if “the case involves a bona fide claim of title” (emphasis added)). Because “a court
always has jurisdiction to determine whether it has subject matter jurisdiction,” Morrison, 239
Va. at 170, 387 S.E.2d at 755, the court has the authority to explore the allegations to determine
whether, if proven, they are sufficient to state a bona fide claim that the foreclosure sale and
trustee’s deed could be set aside in equity. Stated differently, the allegations must be sufficient
to survive a demurrer had the homeowner filed a complaint in circuit court seeking such relief.
4
We said in Warwick that subject matter jurisdiction to try title must be “expressly
conferred [upon courts not of record] by statute.” 56 Va. (15 Gratt.) at 542. Code §§ 16.1-77(3)
and 8.01-126 do not expressly confer that power upon general district courts. The General
Assembly may, of course, amend the statutes to do so, or it may be satisfied that circuit courts
have subject matter jurisdiction both to try title and to adjudicate actions for unlawful detainer
under Code § 8.01-124, which permits foreclosure purchasers to initiate unlawful detainer
actions in circuit court.
6
For example, we have indicated that a trustee’s deed could be set aside in “cases
involving fraud, collusion with the purchaser, and a foreclosure sale price of such gross
inadequacy that it shocks the conscience of the court.” Ramos v. Wells Fargo Bank, NA, 289
Va. 321, 324 n.*, 770 S.E.2d 491, 494 n.* (2015) (per curiam) (internal alteration and quotation
marks omitted). This list is not exhaustive. We have also said that a foreclosure sale could be
set aside in equity when it was conducted in material breach of the deed of trust. Smith v.
Woodward, 122 Va. 356, 374, 94 S.E. 916, 921 (1918) (“[A] court of equity will not permit a
grantor in trust to be deprived of his property by an unauthorized act of the trustee, and will set
aside a sale and conveyance where the trustee has exceeded the authority conferred upon him, or
sold the grantor's land after the purposes of the trust have been accomplished, and especially
where the purchaser has notice, actual or constructive, of the facts.”); see also Wasserman v.
Metzger, 105 Va. 744, 752-53, 54 S.E. 893, 895 (1906) (collecting cases). 5
If the general district court satisfies itself that the allegations are insufficient, it retains
subject matter jurisdiction and may adjudicate the case on the merits. However, if the court
determines that the allegations are sufficient, it lacks subject matter jurisdiction over the case and
it must be dismissed without prejudice. 6 The foreclosure purchaser may then seek appropriate
5
A general allegation that the trustee breached the deed of trust is not sufficient. The
homeowner’s allegations must (1) identify with specificity the precise requirements in the deed
of trust that he or she asserts constitute conditions precedent to foreclosure, (2) allege facts
indicating that the trustee failed to substantially comply with them so that the power to foreclose
did not accrue, and (3) allege that the foreclosure purchaser knew or should have known of the
defect. See Squire v. Va. Hous. Dev. Auth., 287 Va. 507, 515-18, 758 S.E.2d 55, 60-61 (2014).
6
Our decision today that general district courts lack subject matter jurisdiction over
unlawful detainer cases where the homeowner raises a legitimate question of title does not
reopen for collateral attack past cases where homeowners could have presented such questions
but did not. General district courts have subject matter jurisdiction over unlawful detainer cases.
What they lack is subject matter jurisdiction to try title. Where the homeowner presented no
question of title, the court's jurisdiction was complete.
Similarly, where a homeowner does present a question of title but the general district
court determines that it is not legitimate, that decision may be voidable if the homeowner
7
remedies in the circuit court under its original jurisdiction. 7
We must now apply this rule to the case before us. The Parrishes’ only detailed
allegations are in the pleadings they filed in the general district court. However, in their other
assignment of error they assert that the circuit court erred by considering those pleadings in their
de novo appeal. They argue that the nature of a de novo appeal precludes such consideration.
Fannie Mae responds that the court did not err because Code § 16.1-112 requires the general
district court to transmit the record of the original proceedings to the circuit court when an appeal
is taken there.
The burden lies with the appellant to show reversible error below. Lindsey v. Lindsey,
158 Va. 647, 654, 164 S.E. 551, 553 (1932). Apart from Code § 16.1-106, the Parrishes cite no
legal authority for their argument. Although Code § 16.1-106 provides that appeals from courts
not of record are heard by the circuit court de novo, Code § 16.1-112 requires the lower court to
transmit its record to the circuit court. We have previously held that although de novo, an appeal
in the circuit court is a continuation of the original case. Stacy v. Mullins, 185 Va. 837, 840, 40
S.E.2d 265, 266 (1946). Accordingly, we find no basis to conclude that the circuit court erred by
considering the pleadings filed in the general district court.
Turning to the allegations set forth in those pleadings, we note that the Parrishes alleged
that their deed of trust incorporated 12 C.F.R. § 1024.41(g) as a condition precedent to
foreclosure. That regulation prohibits a foreclosure sale after a homeowner submits a complete
challenges it as erroneous on direct appeal. However, the decision would not be subject to
collateral attack because the general district court will have rendered no judgment it lacked
subject matter jurisdiction to render.
7
Nothing in our decision today relieves a homeowner of the obligation to pay his or her
lender, which arises from the note, not the deed of trust. The deed of trust merely secures the
indebtedness evidenced by the note. As we indicated in Mathews v. PHH Mortgage Corp., 283
Va. 723, 732-33 & n.2, 724 S.E.2d 196, 200 & n.2. (2012), a breach by one party of the note
does not relieve the other party of its obligations under the deed of trust, or vice versa.
8
loss mitigation application under certain circumstances. They alleged that they submitted such
an application and that none of the exceptions provided in the regulation (which would have
permitted Fannie Mae and its agent to proceed to foreclosure notwithstanding the application)
applied. We may further infer from their allegations that the foreclosure purchaser, Fannie Mae,
was aware of the alleged violation of the deed of trust because it was the lender that allegedly
committed the violation. We conclude that these allegations are sufficient that, if proved, they
could satisfy a court of equity to set aside the foreclosure.
We therefore hold that the Parrishes raised a bona fide question of title in the unlawful
detainer proceeding, thereby divesting the general district court of subject matter jurisdiction.
Accordingly, the general district court lacked subject matter jurisdiction to try the unlawful
detainer action before it. The circuit court likewise lacked subject matter jurisdiction while
exercising its de novo appellate jurisdiction, because its subject matter jurisdiction was derived
from and limited to the subject matter jurisdiction of the court from which the appeal was taken.
Its authority therefore was limited to dismissing the proceeding without prejudice, thereby
enabling the foreclosure purchaser to pursue its choice of available remedies in the circuit court
under that court’s original jurisdiction.
III. CONCLUSION
We conclude by reiterating that our holding arises from the need to reconcile Addison
and Warwick (i.e., that courts not of record lack power to try title unless expressly conferred by
the General Assembly) with the scope of the subject matter jurisdiction conferred on general
district courts in Code § 8.01-126. We appreciate the concerns about the practical implications
of this holding raised by Justice Powell in her opinion concurring in part and dissenting in part.
We particularly note her observation that our holding provides no opportunity for a defending
homeowner to argue or prove that a trustee’s deed is simply invalid, whether the foreclosure
9
purchaser is a bona fide purchaser or not. However, these concerns are properly addressed to the
General Assembly. We must determine the scope of subject matter jurisdiction relying upon the
statutes as they are presently enacted.
For the reasons stated above, we vacate the judgment of the circuit court and dismiss the
summons for unlawful detainer, thereby restoring the parties to their status quo ante the
commencement of the unlawful detainer proceeding.
Vacated and dismissed.
JUSTICE McCLANAHAN, concurring in part and dissenting in part.
While I agree with the majority that the circuit court did not err in considering the
pleadings filed in the general district court, I disagree with the majority’s conclusion that the
general district court was divested of subject matter jurisdiction to try the unlawful detainer
action. Furthermore, because the Parrishes’ allegations of a breach of the deed of trust, even if
true, would not entitle the Parrishes to possession of the property in an unlawful detainer action, I
would affirm the judgment of the circuit court.
A. Subject Matter Jurisdiction
In a result-oriented approach, the majority creates, and then resolves, a question of
subject matter jurisdiction that has heretofore never existed. The majority accomplishes this
result by disregarding traditional principles of title to deprive the general district court of
jurisdiction expressly granted to it by the General Assembly. The majority eliminates right of
possession as an element of title and crafts an entirely new, albeit undefined, concept of “title”
along with a new procedure for adjudicating this vague right.
At the outset, the majority’s approach is premised upon a fundamental misunderstanding
of real property law and the nature of an unlawful detainer action. In particular, the majority
10
opinion fails to distinguish between right of possession – a degree of title to real property that is
subject to adjudication in an unlawful detainer action – and complete title, which is not at issue
in an unlawful detainer action. Well-settled principles of title establish that right of possession is
an element or degree of title in and of itself that does not depend on good and complete title. 1
“The question to be determined in [an unlawful detainer] case is the right of possession, and to
this end the question of the complete title is not the question to be determined; and to maintain
the action the plaintiff need not have the complete title.” Pannill v. Coles, 81 Va. (6 Hans.) 380,
385 (1886). In Pannill, the Court explained that while an unlawful detainer action does not
involve “complete title,” it is an action “concerning title” because it determines “any element of
1
“There are several stages or degrees requisite to prove a complete title to
lands and tenements:
1st. The lowest and most imperfect degree of title consists in the mere
naked possession or actual occupation of the estate, without any apparent
right or any shadow or pretence of right to hold or continue such
possession. And at all events without such actual possession no title can be
completely good. 2d. The next step to a good and perfect title is the right of
possession, which may reside in one man while the actual possession is not
in himself, but in another. 3d. The mere right of property, the proprietatis,
without either the possession, or the right of possession, the mere right is in
him, the jus merum, and the estate of the owner is in such cases said to be
totally divested, and put to a right. 4th. A complete title to lands,
tenements, and hereditaments. For it is an ancient maxim of the law that no
title is completely good unless the right of possession be joined with the
right of property, which right is then denominated a double right, jus
duplicatum, or droit droit. And when, to this double right the actual
possession is also united, there is, according to the expression of Fleta, juris
et seisinae conjunctio, there and then only is the title completely legal.”
Pannill v. Coles, 81 Va. (6 Hans.) 380, 383-84 (1886) (emphasis added) (quoting 2
William Blackstone, Commentaries 195); see also 2 Henry St. George Tucker, Commentaries on
the Laws of Virginia 178-80 (3d ed. 1846); 2 John B. Minor, Institutes of Common and Statute
Law 511-15 (3d ed. 1882).
11
complete title,” i.e., right of possession. Id. at 385-86. 2 The Court clarified that despite
“expressions” in previous cases “in which possession seems to have been contrasted with the
title,” a controversy concerning right of possession is a controversy concerning title. Id.; see also
Seitz v. Federal National Mortgage Ass’n, 909 F. Supp. 2d 490, 499 (E.D. Va. 2012) (“Thus,
generally speaking, in an unlawful detainer action, the court is largely confined to a
determination within Blackstone’s first and second ‘degrees’ of title.”); In re Cherokee Corp.,
222 B.R. 281, 286 (Bankr. E.D. Va. 1998) (“The issue of proper title is separate and independent
of a determination of lawful possession” and is “irrelevant to a claim of unlawful detainer.”).
The General Assembly has expressly conferred jurisdiction upon general district courts to
try right of possession in unlawful detainer actions. See Code § 16.1-77(3) and Code § 8.01-
126. 3 Following the principles discussed in Pannill, right of possession is a degree of title that
presents an issue for resolution independent of any issue of good and complete title. Therefore,
upon simple application of these principles, it is clear that the general district court had subject
matter jurisdiction to determine whether Fannie Mae was “entitled to the possession” of the
2
The Court’s discussion in Pannill of the distinction between right of possession and
complete title arose in the context of the appellee’s motion to dismiss the writ of error on the
grounds that Article VI, Section 2, of the Constitution of Virginia did not confer appellate
jurisdiction on the Court over an unlawful detainer action because it was not a controversy
“concerning the title” of land. Pannill, 81 Va. at 382-83. The Court concluded that an unlawful
detainer action, involving only right of possession, involved an element of title, and therefore,
was an action “concerning title.” Id. at 385-86.
3
Code § 16.1-77(3) provides that “each general district court shall have . . . [j]urisdiction
of actions of unlawful entry or detainer as provided in Article 13 (§ 8.01-124 et seq.) of Chapter
3 of Title 8.01.” Code § 8.01-126(A) provides that “[i]n any case when possession of any house,
land or tenement is unlawfully detained by the person in possession thereof, the landlord, his
agent, attorney, or other person, entitled to the possession may present to a magistrate or a clerk
or judge of a general district court a statement under oath of the facts which authorize the
removal of the tenant or other person in possession.”
Code § 8.01-126 does not make the distinction, as the majority does, between the
unlawful detainer plaintiff “who once held both title and possession” and the unlawful detainer
plaintiff “who never held possession.”
12
property without regard to whether Fannie Mae had good and complete title. Code § 8.01-
126(A). 4 The Parrishes’ allegations of a breach of the deed of trust, while they may very well
assert a cloud upon Fannie Mae’s good and complete title, did not divest the general district
court of jurisdiction because right of possession does not depend on good and complete title. 5
Despite the clear grant of subject matter jurisdiction to the general district court to try
right of possession and settled law establishing that right of possession does not depend on
complete and good title, the majority creates a question of subject matter jurisdiction by
eliminating right of possession as a distinct element of title separate from complete title and
adopting a new one-dimensional, yet undefined, concept of title from which right of possession
4
Instead of unpacking the broad principle that general district courts are without
jurisdiction to “try title” to understand how it operates in conjunction with settled rules of title
and the statutory grant of jurisdiction to general district courts to try right of possession in
unlawful detainer actions, the majority plainly discards the “first principles” of title previously
approved by this Court. See Pannill, 81 Va. at 383. Armed with its newly crafted concept of
“title,” the majority invokes this broad principle as applied outside the context of unlawful
detainer actions. See, e.g., Addison v. Salyer, 185 Va. 644, 648, 40 S.E.2d 260, 262 (1946) (trial
justice was without jurisdiction to reform deed in an attachment proceeding); Warwick v. Mayo,
56 Va. (15 Gratt.) 528, 540-41 (1860) (where the mayor imposed a fine for alleged obstruction of
a street and person so fined claimed ownership of property on which the obstruction was placed,
the mayor was without jurisdiction to determine ownership of property). These cases do not
involve unlawful detainer actions, and therefore, the jurisdiction granted to courts to adjudicate
right of possession. Furthermore, neither contains any discussion of the successive degrees of
title. Accordingly, they cannot provide any meaningful guidance here.
5
Although the majority characterizes this case as involving a challenge to the validity of
the trustee’s deed, the Parrishes do not seek to invalidate the trustee’s deed. In fact, the Parrishes
readily acknowledge that they cannot and do not seek to set aside the trustee’s deed. The issue
before the general district court was whether the Parrishes’ allegations of a breach of the deed of
trust, if proven true, would entitle them to possession of the property in the absence of setting
aside the trustee’s deed. If proof of a violation of the deed of trust would entitle the Parrishes to
possession, then the general district court would be required to consider such evidence and
determine right of possession. If proof of violation of the deed of trust would not entitle the
Parrishes to possession, then such evidence would be irrelevant to the determination of right of
possession. Under either scenario, the general district court had jurisdiction to determine the
right of possession.
13
flows. 6 Having abandoned the traditional elements of title, it is hardly surprising that the
majority finds itself in a “conundrum.” Under the majority’s nebulous concept of title, the broad
principle that general district courts cannot try title takes on a novel meaning and leads to the
absurd result that general district courts are no longer empowered to adjudicate right of
possession whenever a dispute arises over “title” – as that term is understood by the majority. 7
Not only has the majority abandoned settled principles of real property law, it has
practically eliminated the availability of the summary proceeding of unlawful detainer to
purchasers of property at foreclosure sales. The majority’s new procedure for obtaining
possession operates to deprive record owners of possession until disputes over “title” are
adjudicated after the record owner has sought the “appropriate” remedy in circuit court. 8
6
The majority’s rejection of the principles of title discussed in Pannill appears to be
based on language found in the earlier case of Corbett v. Nutt, 59 Va. (18 Gratt.) 624, 648
(1868), an unlawful detainer action in which the parties presented competing evidence of right of
possession. Noting that the controversy in an unlawful detainer action may turn “upon the
validity of the title under which the defendant claims to hold the possession,” the Court in
Corbett rejected an argument that unlawful detainer was not an appropriate remedy where “title
alone is involved.” This language is entirely consistent with the Court’s recognition in Pannill
that right of possession is a form of title and, in fact, validates the reality that unlawful detainer
actions are an expedient statutory remedy for determining the right of possession, one form of
title – not good and complete title. Furthermore, to the extent the majority relies on this
language as authority for the proposition that right of possession depends on good and complete
title, this interpretation is analytically unsupported because Corbett was decided prior to Pannill,
Pannill is consistent with Corbett, and the majority must abandon the traditional four degrees of
title in favor of a one-dimensional concept of title to get there.
7
Although it is clear that the majority has abandoned the traditional elements of title
recognized in Pannill, it is not clear what the majority means when it refers to the term “title.”
Since the majority has concluded that a general district court must dismiss an unlawful detainer
action that involves a bona fide claim of title, the majority seems to equate its concept of title
with the degree of good and complete title recognized under traditional property law principles.
8
The majority’s flawed understanding of title and the nature of an unlawful detainer
action is illustrated by its suggestion that the circuit court could adjudicate right of possession in
an unlawful detainer action brought under Code § 8.01-124 even when the general district court
could not under Code § 8.01-126. But “judgment in an action of unlawful detainer settles
nothing, even as between the parties, in regard to [good and complete] title.” Brown v. Lawson,
86 Va. 284, 286, 9 S.E. 1014, 1015 (1889). This is true regardless of where the action originates.
14
Specifically, under the majority’s holding, the Parrishes are entitled to retain possession of the
property, without any obligation of payment, while record ownership, and the corresponding
obligations of record ownership, including payment of taxes, remain with Fannie Mae. The
majority’s new procedure, which appears to involve determination of something more than right
of possession but something less than good and complete title, is unnecessary since avenues
already exist for claims of a wrongful conveyance of property, e.g., actions to set aside deeds. 9
Yet, under the majority’s holding, the Parrishes need not seek to set aside the deed but may,
nevertheless, deny possession to the record owner merely upon the allegations that they have
grounds to set aside the deed if they were so inclined, thereby ousting the general district court of
its jurisdiction.
In sum, I cannot join the majority’s effort to implement a policy in Virginia that
effectively prevents a class of record property owners from obtaining possession of property via
a summary proceeding that has been in place for centuries. 10 If it is to be the policy of Virginia
that there should be limitations on the right of purchasers at foreclosure sales to obtain
possession of the property, then the adoption of such a policy and specific limitations on the right
Fannie Mae already holds the deed to the property. Thus, it is not apparent what the “appropriate
remedy” for Fannie Mae to seek in circuit court would be.
9
Parties who believe they are aggrieved by a wrongful conveyance of property may file
an action seeking to set aside the conveyance and enjoin prosecution of an unlawful detainer
action. See e.g., Hamilton v. Stephenson, 106 Va. 77, 55 S.E. 577 (1906) (action against trustee
and purchaser to set aside sale and enjoin prosecution of unlawful detainer); Wohlford v.
Wohlford, 121 Va. 699, 93 S.E. 629 (1917) (action to set aside codicil to will and deed and
enjoin prosecution of unlawful detainer); see also Whitlow v. Mountain Trust Bank, 215 Va.
149, 207 S.E.2d 837 (1974) (action to set aside foreclosure sale). Even where a party disputes
the right of possession in an unlawful detainer case and loses, that party is not precluded from
bringing an action to have the deed annulled. Harrison v. Manson, 95 Va. 593, 595-96, 29 S.E.
420, 421 (1898).
10
By altering the definition of title and relegating right of possession to nothing more
than an ambiguous notion, the majority has effectively eliminated the usefulness of this summary
proceeding outside the context of actions between landlords and tenants.
15
of possession should be accomplished by an act of the General Assembly, not through judicial
pronouncement by this Court. See Bevel v. Commonwealth, 282 Va. 468, 479-80, 717 S.E.2d
789, 795 (2011); Hackley v. Robey, 170 Va. 55, 66, 195 S.E. 689, 693 (1938). “The
public policy of the Commonwealth is determined by the General Assembly [because] it is the
responsibility of the legislature, and not the judiciary, . . . to strike the appropriate balance
between competing interests.” Uniwest Constr., Inc. v. Amtech Elevator Servs., 280 Va. 428,
440, 699 S.E.2d 223, 229 (2010) (internal quotation marks and citation omitted).
B. Present Right of Possession
Since I would hold that the general district court did have subject matter jurisdiction over
the unlawful detainer action, I would proceed to determine whether the circuit court erred in
granting summary judgment in favor of Fannie Mae.
In my view, the circuit court did not err in concluding that Fannie Mae was entitled to
possession, since proof of violation of the terms of the deed of trust would not entitle the
Parrishes to possession of the property in this action. This Court has stated that “if trustees
invested with the legal title to an estate conveyed it to another in plain violation of the trust, and
even by a deed which on its face shows such violation, the title of the grantee is good at law, and
resort must be had to a court of equity to set aside the deed.” Carrington v. Goddin, 54 Va. (13
Gratt.) 587, 601 (1857). Applying that principle here, the trustee’s deed is valid and establishes
Fannie Mae’s right of possession unless it is set aside by a court hearing an equitable cause of
action for such relief. Since that remedy is not available in an unlawful detainer action, which
only determines right of possession, the Parrishes’ allegations of a breach of the deed of trust are
16
not relevant to a determination of the right of possession. 11
For example, the United States District Court for the Eastern District of Virginia
held that where a foreclosure is invalidated, the purchaser at foreclosure is nevertheless in lawful
possession of the property from the time of purchase until the date the sale is invalidated. In re
Cherokee Corp., 222 B.R. 281 (Bankr. E.D. Va. 1998).
Case law is unclear on the issue of whether the purchaser of
property at a trustee’s auction is vested with proper title during the period
before the sale is later invalidated because it was not properly conducted.
However, proper title is irrelevant to a claim of unlawful detainer because,
lawful possession of property is the only issue to be determined in a claim
for unlawful detainer.
We conclude that by virtue of the trustee’s sale [the creditor] had a right to
possess the property until the sale was invalidated on January 20, 1995.
[Debtor] has not proven that [creditor] unlawfully held the property as
against [debtor] because [creditor] rightfully possessed the property.
Id. at 286.
In sum, Fannie Mae presented evidence of its right to possession by virtue of the trustee’s
deed. The Parrishes admit that the property was sold to Fannie Mae and that the deed of
conveyance is recorded in the land records. And there is no claim by the Parrishes that the deed
is facially invalid. Because the Parrishes’ allegations of a violation of the deed of trust, even if
true, would not deprive Fannie Mae of its right to possession, the circuit court did not err in
awarding Fannie Mae possession of the property.
C. Conclusion
For the foregoing reasons, I would affirm the judgment of the circuit court.
11
As noted previously, the Parrishes could have filed an action to set aside the
conveyance after the foreclosure sale if they believed the conveyance was unlawful. In fact, the
record reflects that they ultimately did file an action seeking rescission of the trustee’s deed after
Fannie Mae moved for summary judgment in the unlawful detainer action when it was on appeal
to the circuit court.
17
JUSTICE POWELL concurring 1 in part and dissenting in part.
Although I agree with the majority that general district courts, as courts not of record, do
not have the subject matter jurisdiction to try title to real property, I cannot agree with the
majority’s reasoning that questions concerning title are the equivalent of trying title. In my
opinion, there is a significant difference between an action that turns on the question of title and
an action that tries title. The former is merely an evidentiary question, whereas the latter
involves a conclusive determination of a party’s claim of title. As the majority’s ruling is
unsupported by this Court’s jurisprudence, leads to an unnecessary expansion of the concept of
trying title and impedes the ability of home owners to protect the possession of their homes, I
must respectfully dissent.
As an initial matter, rather than simply equate a question concerning title with trying title,
I believe it is important to first define the term “try title.” Our jurisprudence makes it clear that
the term clearly encompasses a number of different actions. Accordingly it is necessary to
review these actions in order to provide a proper definition. The two most common forms of
trying title are ejectment (Code § 8.01-131, et seq.) and quiet title (Code § 55-153). “Ejectment
is an action at law to determine title and right of possession of real property.” Brown v. Haley,
233 Va. 210, 216, 355 S.E.2d 563, 567 (1987). At common law, an ejectment action “was the
exclusive remedy to try title and settle controverted boundaries of land.” Patterson v. Saunders,
194 Va. 607, 610, 74 S.E.2d 204, 206 (1953). To bring an ejectment action, a plaintiff must
allege he is the owner of the legal title to real property that he does not currently possess. Otey
v. Stuart, 91 Va. 714, 716, 22 S.E. 513, 514 (1895). Further, “[t]he plaintiff has the burden of
1
I fully agree with the majority’s analysis with regard to the circuit court’s consideration
of the pleadings filed in the general district court.
proving that he has good title and the right to possession, and he must recover upon the strength
of his own title rather than upon the weakness of the defendant's title.” Providence Properties,
Inc. v. United Virginia Bank, 219 Va. 735, 744, 251 S.E.2d 474, 479 (1979). Most importantly,
once the plaintiff proves he has good title and the right of possession, the judgment in his favor
“shall be conclusive as to the title or right of possession established in such action, upon the
party against whom it is rendered, and against all persons claiming from, through, or under such
party, by title accruing after the commencement of such action, except as hereinafter mentioned.”
Code § 8.01-163 (emphasis added).
In contrast to an ejectment action, a party in possession of the property who claims to
have good title and the right of possession must bring an action to quiet title. “[A]n action to
quiet title is based on the premise that a person with good title to certain real or personal property
should not be subjected to various future claims against that title.” Maine v. Adams, 277 Va.
230, 238, 672 S.E.2d 862, 866 (2009). Further, “in a quiet title action, a plaintiff asks the court
to declare that he has good title to the property in question and compels any adverse claimant to
prove a competing ownership claim or forever be barred from asserting it.” Id. Thus, unlike
ejectment, where judgment only concludes the matter between the parties to the action, the
judgment in a quiet title action conclusively establishes complete title to the property in the
prevailing party.
In addition to ejectment and actions to quiet title, this Court has recognized a third form
of trying title: actions that implicitly try title. Such actions arise where the issue of title is raised
and conclusively adjudicated between the parties in a collateral proceeding. Unlike the other
forms of trying title, actions that implicitly try title do not establish complete title in one party or
19
the other; rather, such actions typically conclusively establish that one party does not hold title to
the property and estops that party from asserting title in a subsequent action.
The trial of an action of trespass may turn upon the question of
title, and if either of the parties puts his title in issue, and it is tried
and passed upon, the verdict and judgment in that suit will be
conclusive evidence in favor of (or against) such title, at least in a
subsequent action of trespass.
Douglas Land Co. v. T. W. Thayer Co., 113 Va. 239, 242, 74 S.E. 215, 216 (1912) (internal
quotation marks and citation omitted).
Noting that the underlying action was for trespass, the Court in Douglas Land Co.
expressed no opinion as to whether, in an ejectment action, “the judgment in the action of
trespass would be conclusive of the title between the parties.” Id. However, upon revisiting the
issue, this Court acknowledged that a party is estopped from relitigating the issue of title in an
ejectment action if that issue has already been raised and conclusively adjudicated on the merits
in a trespass action. Kesler v. Fentress, 223 Va. 14, 18-19, 286 S.E.2d 156, 158 (1982).
When the various actions trying title 2 are viewed together the defining characteristic of
these actions becomes readily apparent. An ejectment action conclusively establishes whether or
not the plaintiff is entitled to complete title to the property. An action to quiet title conclusively
establishes who holds complete title to the property. An action that implicitly tries title
conclusively establishes that a party does or does not hold title to the property, thereby estopping
at least one party to the action from subsequently bringing an action to try title. Notably, all of
the actions trying title that have been recognized by this Court will always result in at least one
party being conclusively adjudicated as holding or not holding complete title to the property.
2
That is not to say that these are the only forms of trying title; undoubtedly other forms
exist. However, at present, these are the only forms of trying title that research indicates that our
jurisprudence has recognized.
20
Thus, the defining characteristic of an action trying title is that collateral estoppel prevents at
least one party to the action from relitigating the issue of title because that issue has been
conclusively determined as to that party. Therefore, in my opinion, the term “try title” refers to
those actions that result in a conclusive adjudication of whether a party does or does not have
title to property.
Unlawful detainer actions, on the other hand, involve a “controversy concerning the
possession of land.” Pannill v. Coles, 81 Va. (6 Hans.) 380, 383 (1886) (emphasis added). The
purpose of such actions is “to try the right of possession.” Gale v. Trust Co. of Norfolk, 142 Va.
170, 171, 128 S.E. 643 (1925). This Court has recognized that, while the determination of who
has the right of possession “may turn altogether upon the validity of [a party’s] title,” Corbett v.
Nutt, 59 Va. (18 Gratt.) 624, 648 (1867), “the question of complete title is not the question to be
determined.” Pannill, 81 Va. (6 Hans.) at 385 (emphasis added). Indeed, for 190 years, this
Court has recognized that in an unlawful detainer action “[t]he only question is, whether the
plaintiff is entitled to possession as against the defendant. For the purpose of determining his
question, the title may be given in evidence.” Allen v. Gibson, 25 Va. (4 Rand.) 468, 477
(1826). By the same token, for the purpose of determining possession, the title that has been
given into evidence should be subject to inquiry, just like any other piece of evidence.
Moreover, as previously noted, the defining characteristic of an action trying title is the
collateral estoppel that attaches with regard to a party’s claim of title. “To ascertain the scope of
the estoppel sought to be asserted, and to determine just what has been adjudicated and between
what parties, inquiry may extend to the evidence and instructions as well as to the pleadings and
judgment.” Patterson v. Anderson, 194 Va. 557, 565, 74 S.E.2d 195, 200 (1953). A review of
the proceedings in this case indicates that neither party sought to conclusively adjudicate the
21
issue of title. Therefore, because neither party could rely on this action for collateral estoppel
purposes, it cannot be said that the present case is an action to try title.
Not only is neither party seeking to have the issue of title conclusively adjudicated, but
the General Assembly has expressly indicated that neither party could seek to have such an issue
conclusively adjudicated in an unlawful detainer action. Code § 8.01-130 explicitly states:
No judgment in an action brought under the provisions of this
article shall bar any action of trespass or ejectment between the
same parties, nor shall any such judgment or verdict be conclusive,
in any such future action, of the facts therein found.
Code § 8.01-130 makes it clear that the General Assembly did not intend for an unlawful
detainer action to definitively resolve any issue as to title. 3 Rather, the General Assembly has
explicitly stated the exact opposite: unlawful detainer actions cannot conclusively establish any
issue as to title. In other words, the General Assembly intended for unlawful detainer actions to
have the limited effect of deciding who among the parties to the action has the right of
possession at that time. In light of the plain language of Code § 8.01-130, it is unclear how it can
be said that an unlawful detainer action “tries title.” 4
Furthermore, this statutory scheme supports the principle that not only can evidence of
title be presented in an unlawful detainer action, but it can also be disputed. By including Code
3
It is worth noting that, absent Code § 8.01-130, there is very little difference between
ejectment and unlawful detainer. Indeed, both actions are “founded on the plaintiff's right of
possession at the time of the institution of the action.” Williamson v. Paxton, 59 Va. (18 Gratt.)
475, 505 (1867) accord Pettit v. Cowherd, 83 Va. (8 Hans.) 20, 25, 1 S.E. 392, 395 (1887). The
only actual significant difference between the two actions is that an unlawful detainer action
lacks the preclusive effect of an ejectment action due to Code § 8.01-130.
4
It should be noted that Code § 8.01-130 does not distinguish between unlawful detainer
actions brought in the general district court and unlawful detainer actions brought in the circuit
court. Thus, it is clear that the General Assembly did not intend for an unlawful detainer action
to try title, regardless of whether the action is brought in the general district court or the circuit
court. Indeed, the fact that Code § 8.01-130 applies equally to an unlawful detainer action filed
in either court indicates that the General Assembly intended for such actions to be treated the
same, regardless of what court the action is filed in or what defense is raised.
22
§ 8.01-130, the General Assembly indicated that it anticipated evidence of title would be
presented and disputed in an unlawful detainer action. If it did not anticipate such evidence
would be presented, there would be no need for any limitation of the preclusive effects of
unlawful detainer actions, especially with regard to matters that actually try title (i.e., ejectment
actions).
Finally, it cannot be overlooked that the General Assembly has expressly conferred
jurisdiction over unlawful detainer actions upon general district courts with no limitations.
Contrary to the result reached by the majority, nothing in Code §§ 16.1-77(3) or 8.01-126
indicates any limitation upon the jurisdiction of a general district court to hear unlawful detainer
actions. 5 For example, Code § 16.1-77(3) does not indicate that general district courts have
jurisdiction over all unlawful detainer actions except those that concern a question of title. Given
our presumption “that the General Assembly, when enacting new laws, is fully aware of the state
of existing law relating to the same general subject matter,” Gillespie v. Commonwealth, 272 Va.
753, 758, 636 S.E.2d 430, 432 (2006), the reason that no such statutory limitation exists is
obvious: such language is unnecessary. A version of Code § 8.01-130 has been codified since at
least 1855, see Olinger v. Shepherd, 53 Va. (12 Gratt.) 462, 473 (1855), and, as previously noted,
it clearly allows for the validity of title to be litigated in an unlawful detainer action. If not, the
prohibitions contained in Code § 8.01-130 would be unnecessary.
Considering that it has been the law of the Commonwealth since at least 1855 that
unlawful detainer actions do not try title, Olinger, 53 Va. (12 Gratt.) at 473, in conjunction with
this Court’s long recognition that the validity of a party’s title may be at issue in an unlawful
5
That is not to say, however, that the General Assembly intended to confer upon general
district courts subject matter jurisdiction to try title. Indeed, there would be no need to confer
such jurisdiction because, as I have repeatedly stated, unlawful detainer actions only concern the
right of possession and do not try title.
23
detainer action, Corbett, 59 Va. (18 Gratt.) at 648, it is clear to me that general district courts
have jurisdiction to hear unlawful detainer actions and decide the limited issue of possession
even when a bona fide question of title is raised. Thus, I fail to appreciate the conundrum to
which the majority refers. I am, however, cognizant of the potential conundrum that the majority
opinion creates. Notably, the majority has created a new class of cases where a court is deprived
of jurisdiction, not because of the nature of the claim or the successful assertion that the court
lacks jurisdiction (e.g., a plea in bar), but because the defendant simply raises a specific defense.
To my knowledge, there exists no other class of cases where a court loses jurisdiction based on
the nature of the defense raised.
Moreover, I am particularly concerned with what appears to be an imbalance in the
majority’s approach. Under the majority’s approach, a plaintiff’s allegation of a valid trustee’s
deed is sufficient to conclusively establish its right of possession. However, a defendant cannot
merely present evidence to rebut the validity or bona fides of that deed in general district court.
Rather, according to the majority, a defendant must do significantly more than just deny the
validity of the trustee’s deed. A defendant must assert a bona fide question of title “sufficient to
survive a demurrer had the [defendant] filed a complaint in circuit court seeking [to set aside a
foreclosure.]” In other words, a defendant must plead sufficient facts to meet a different
standard for a different cause of action that can only be raised in a different court. 6 Even then,
6
Further demonstrating the seeming imbalance of the majority’s approach, the majority
seeks to foreclose any collateral attacks on previous unlawful detainer actions where defendants
raised a question concerning title. In holding that these decisions are merely voidable, the
majority presumes that the general district court’s decision was based on a finding that the
defendant had not raised a bona fide question of title. Rarely will we have any way of knowing
the basis for the general district court’s ruling. Indeed, it is not beyond of the realm of possibility
that the defendant raised a bona fide question of title but lost because the general district court
made a ruling on the merits, notwithstanding the fact that it had no jurisdiction to do so. The
24
by successfully raising the requisite bona fide question of title, the defendant cannot have the
matter resolved in general district court. Instead, the defendant can only cause the matter to be
removed from the general district court to be heard in the circuit court.
Furthermore, I cannot overlook the fact that the majority effectively holds that a general
district court only has jurisdiction to rule against a defendant. If a defendant has raised sufficient
allegations to allow a general district court to rule in that defendant’s favor, that court loses
jurisdiction over the matter, but if the defendant fails to raise sufficient allegations, the court
retains jurisdiction. Stated differently, the majority has crafted an approach that prevents a
general district court from ruling on the merits in favor of a defendant.
Thus, it is clear to me that the general district court had subject matter jurisdiction to hear
the present case regardless of the defense raised by the Parrishes. As a result, I would also find
that the circuit court properly exercised its derivative jurisdiction. Therefore, it is necessary to
address the circuit court’s decision to grant Fannie Mae summary judgment. In my opinion, the
circuit court erred in granting summary judgment. Notably, by raising a bona fide question of
title, the Parrishes have presented a disputed issue of material fact. Furthermore, our case law
establishes that Fannie Mae was not entitled to judgment as a matter of law on this issue. Indeed,
under this Court’s jurisprudence, the exact opposite is true.
The general rule concerning the position of a trustee under a deed
of trust is that the trustee is a fiduciary for both debtor and creditor
and must act impartially between them. Implicit in this rule is the
proposition that a trustee must refrain from placing himself in a
position where his personal interest conflicts with the interests of
those for whom he acts as fiduciary.
Generally, a trustee cannot be both a seller and a buyer at his own
auction sale, because the two roles are incompatible. When a
trustee buys at his own sale, a constructive fraud exists; the
only way to determine the basis for the general district court’s ruling is to reopen the case and
allow a collateral attack.
25
transaction is voidable; and when attacked, the sale must be set
aside. In such a situation, the adequacy of consideration, fairness
of the sale, and good motive of the trustee in purchasing are not
controlling. A prime reason for making such a sale voidable is the
necessity of upholding the fiduciary relationship between the
trustee and those for whom he acts.
Whitlow v. Mountain Trust Bank, 215 Va. 149, 152, 207 S.E.2d 837, 840 (1974) (citations
omitted) (emphasis added).
In the present case, Atlantic Law Group, LLC (“ALG”), the trustee, was also the agent of
the purchaser, Fannie Mae. Notably, ALG was not only the trustee, but it also represented
Fannie Mae in the general district court and circuit court throughout the underlying litigation.
Thus, the record clearly demonstrates that Fannie Mae was both the buyer and, through its agent,
seller at the foreclosure auction. As Whitlow requires that the foreclosure sale be set aside, the
trial court had no legal basis for granting the summary judgment. Accordingly, I would reverse
the decision of the trial court and remand the matter for further proceedings.
26